SECOND SECTION
\nCASE OF FAT\u0130H \u00c7AKIR AND MERVE N\u0130SA \u00c7AKIR v. TURKEY
\n(Application no. 54558\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n5 June 2018<\/p>\n
FINAL
\n05\/09\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Fatih \u00c7ak\u0131r and Merve Nisa \u00c7ak\u0131r v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 15 May 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 54558\/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Turkish nationals, Mr Fatih \u00c7ak\u0131r and Ms\u00a0MerveNisa\u00c7ak\u0131r (\u201cthe applicants\u201d), on 8 July 2011.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Mr \u0130. Ata\u015f, a lawyer practising in \u0130zmir. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicants alleged, under Article 2 of the Convention,that the failure of the relevant State authorities to take the necessary safety measures on a road had led to the death of their wife and mother,Ms Ye\u015fim\u00c7ak\u0131r. They further alleged, under Articles 6 and 13, that the ensuing judicial proceedings had not been adequate to establish whether the responsibility of the State authorities had been engaged in connection with the death.<\/p>\n 4.\u00a0\u00a0On 30 June 2016 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicants were born in 1979 and 2007 respectively and live in \u0130zmir.<\/p>\n 6.\u00a0\u00a0On 25 October 2008, as the first applicant was driving in \u0130zmir with his wife and one year-old daughter in the back seat, he lost control of his car when the road curved into a sharp bend. As a result, the car dropped into an empty concrete canal running along the right-hand side of the road, some five to six metres below the level of the road. The first applicant\u2019s wife, Ye\u015fim\u00c7ak\u0131r, lost her life at the spot and his daughter (the second applicant) was slightly injured.<\/p>\n 7.\u00a0\u00a0The accident report \u2013 prepared on the same day by the traffic police on the basis of their findings and the statements of the first applicant\u00a0\u2013 indicated that after the first applicant had lost control of the vehicle on the bend, it had first crashed into the metal barrier alongside the road, and had then fallen over the barrierinto an empty canal. The report specified that the crash barrier at that particular spot had been damaged prior to the accident. It also indicated that a road sign warningof a sharp bend ahead had been in place at the time of the accident.<\/p>\n A.\u00a0\u00a0Criminal proceedings<\/strong><\/p>\n 8.\u00a0\u00a0After the accident the first applicant was taken to a police station to give a statement. He told the police that as he had been approaching the sharp bend, he had felt his car skidding to the left. When, at the same time, he had noticed another car approaching him from behind onhis left, he had first applied the brakes and had then swerved his car to the right, at which point he had lost control of the car and hit the crash barrier on the right side of the road. However, since the barrier had been damaged prior to the incident, it had not stopped the car and, therefore, the carhad droppeddown into the empty canal. He claimed that he had lost control of the car as a result of the dangerous bend in the road.<\/p>\n 9.\u00a0\u00a0On the same date, the police also took a statement from M.S, an eyewitness. M.S. told the police that as he had been driving down the opposite side of the road, he had seen the first applicant\u2019s car suddenly swerve to the right, after which it had hit the crash barrier on its right-hand side and had droppeddown the side of the road.<\/p>\n 10.\u00a0\u00a0Later the same day the \u0130zmir public prosecutor questioned the first applicant in connection with the accident. The first applicant admitted before the public prosecutor that he had lost control of the car as he had been taking the bend. He said that, for a reason unknown to him, his car had skidded. He claimed that the road had not been wet, but there had been some slippery substance on it, like sand.<\/p>\n 11.\u00a0\u00a0On 28 October 2008 the \u0130zmir public prosecutor\u2019s office filed a bill of indictment with the \u0130zmir Assize Court against the first applicant, for causing death and bodily injury by negligence.<\/p>\n 12.\u00a0\u00a0At the first hearing held before the \u0130zmir Assize Court on 15\u00a0December 2008 the first applicant stated that as he had been driving along the road at a normal speed, his car had started skidding to the left for an unknown reason, and that he had swerved the car to the right to avoid hitting the car approaching him from the opposite lane on the left. He did not ask the court to carry out an additional investigation into the incident, but stated that the fatal accident had taken place as the crash barrier alongside the road, which was supposed to have been able to stop the car, had been badly damaged.<\/p>\n 13.\u00a0\u00a0At the same hearing, the \u0130zmir Assize Court decided that although the first applicant had been charged with causing death and bodily injury by negligence and that his negligence in that regard had been established, there was no need to subject him to a criminal penalty as it could be accepted that he had been aggrieved by the accident, which had resulted in the death of his wife, to a sufficient degree within the meaning of Article 22 \u00a7 6 of the Turkish Criminal Code. That judgment, which was not appealed against by the first applicant, became final on 23December\u00a02008.<\/p>\n B.\u00a0\u00a0Declaratory judgment of the \u0130zmir Magistrates\u2019 Court<\/strong><\/p>\n 14.\u00a0\u00a0In the meantime, on 17 November 2008 the first applicant applied to the \u0130zmir Magistrates\u2019 Court for a declaratory judgment in order to establish (i)\u00a0\u00a0whether and to what extent the state of the crash barrier alongside the road had contributed to the fatal accident and whether the barrier had been repaired after the accident; and (ii)\u00a0\u00a0whether there had been any structural problems with the road, such as unusual sloping.<\/p>\n 15.\u00a0\u00a0The expert report submitted to the \u0130zmir Magistrates\u2019 Court on 5\u00a0December 2008 made the following findings:<\/p>\n –\u00a0\u00a0the crash barrier at the bend in question had been damaged prior to the accident and the damaged parts of it had not been repaired after the accident;<\/p>\n –\u00a0\u00a0there was a slight dent in the road right by the damagedbarrier; however, there was no structural problem with the slope of the road surface.<\/p>\n C.\u00a0\u00a0Compensation proceedings before the \u0130zmir Administrative Court<\/p>\n 16.\u00a0\u00a0On 2 March 2009 the first applicant applied for compensation from the General Directorate of Highways (\u201cthe General Directorate\u201d) and the Municipality of \u0130zmir (\u201cthe Municipality\u201d) in connection with the road traffic accident that had claimed his wife\u2019s life. According to him, it was evident from the traffic accident report that the crash barrier at the site of the incident had been damaged prior to the incident, which suggested that other road accidents had taken place at that same spot. He argued that the defective state of the barrier, which had been put in place to prevent cars from dropping down the side of the road in the event of impact, had greatly aggravated the outcome of the accident. Had the barrier been repaired prior to the accident,it would most probably have prevented the car, which had been travelling within the legal speed limit, from dropping down into the canal, in which case his wife would possibly not have sustained fatal injuries. He further claimed that the fact that there had been other accidents at the same spot in the past suggested a structural problem with the road.<\/p>\n 17.\u00a0\u00a0Both the General Directorate and the Municipality denied responsibility for the maintenance of the crash barrier at issue.<\/p>\n 18.\u00a0\u00a0On 20 May 2009 the applicants brought an action for compensation before the \u0130zmir Administrative Court against the Municipality alone, arguing that the latter had been responsible for Ye\u015fim\u00c7ak\u0131r\u2019s death on account of its failure to repair the crash barrier in a timely manner, as well as the possible structural problems with the road. The applicants submitted to the Administrative Court as evidence the expert report ordered by the \u0130zmir Magistrates\u2019 Court (see paragraph 15 above).<\/p>\n 19.\u00a0\u00a0The Municipality once again denied responsibility for the maintenance of the crash barrier in question, but also stated that in any event, sole responsibility for the accident lay with the first applicant, who had lost control of his car despite the road signs warning of a sharp bend ahead.<\/p>\n 20.\u00a0\u00a0In their response to the Municipality, the applicants repeated that the state of the roadside barrier showed that other accidents had happened at that exact spot on previous occasions, which in turn suggested a structural problem with the road,such as an unusual sloping towards the side. They requested an expert examination on that matter.<\/p>\n 21.\u00a0\u00a0By an interim decision dated 18 February 2010 the \u0130zmir Administrative Court requested a copy of the criminal case file, as well as detailed information from the Municipality and the General Directorate in order to be able to determine which of those authorities had been responsible for repairing the crash barrier. It appears from the information submitted by the authorities that the repair work in question fell under the responsibility of the Municipality.<\/p>\n 22.\u00a0\u00a0On 16 April 2010 the applicants once again requested an expert examination of the road in order to establish any structural problemsthat may have triggered the accident. They also asked the Administrative Court to find out how many accidents had happened on that road in the past. It appears that the Administrative Court did not obtain the information requested by the applicants.<\/p>\n 23.\u00a0\u00a0Relying mainly on the findings in the traffic accident report and the statements of the first applicant, on 27 May 2010 the \u0130zmir Administrative Court found that the first applicant bore sole responsibility for the accident in question, as he had lost control of his car while taking the bend, despite a sign warning of the sharp bend ahead. It therefore rejected the applicants\u2019 claims against the Municipality.<\/p>\n 24.\u00a0\u00a0The applicants appealed against that judgment. They argued that the judgment was based solely on the traffic accident report, and that a technical expert opinion was required to be able to ascertain whether the first applicant had lost control of his car as a result of an anomaly in the road. They also argued that although the roadside barrier had been damaged to the point of completely losing its protective capacities, the Administrative Court had not taken that factor into account in assessing the Municipality\u2019s responsibility for the accident.<\/p>\n 25.\u00a0\u00a0On 25 January 2011 the Supreme Administrative Court upheld the judgment of the \u0130zmir Administrative Court.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A.\u00a0\u00a0General Directorate of Highways Act (Law no. 5539) (repealed)<\/strong><\/p>\n 26.\u00a0\u00a0Under section 2 of the General Directorate of HighwaysAct (Lawno.\u00a05539) in force at the material time, the General Directorate was tasked not only with the construction and repair of roads, but also with taking measures to ensure their safe use and conducting studies for those purposes.<\/p>\n B.\u00a0\u00a0Road Traffic Act (Law no. 2918)<\/p>\n 27.\u00a0\u00a0Section 7 of the Road Traffic Act provides for the duties and powers of the General Directorate of Highways.The relevant parts of the provision read as follows:<\/p>\n \u201cThe duties and powers of the General Directorate of Highways under this Act are as follows:<\/p>\n (a)\u00a0\u00a0To takethe measures necessary to ensure the safety of life and property on the roads, the construction and maintenance of which they are responsible for, by putting in place the necessary arrangements and markings, or to have such measures taken [by others];<\/p>\n …<\/p>\n (f)\u00a0\u00a0To assemble data on the causes of road traffic accidents and to take…the necessary technical measures to prevent the occurrence of [such accidents];<\/p>\n …<\/p>\n (h)\u00a0\u00a0To take the necessary measures in response to accidents which, according to analyses conducted by the relevant units …, arebrought about by [problems with] the infrastructure and the physical structure of a road… or to have such measures taken [by others];<\/p>\n …\u201d<\/p>\n C.\u00a0\u00a0Regulations on the Duties, Powers and Responsibilities of the General Directorate of Highways (no. 28045)<\/strong><\/p>\n 28.\u00a0\u00a0Article 14 of the Regulations on the Duties, Powers and Responsibilities of the General Directorate of Highways, which sets out the specific duties of the Traffic Safety Department of the General Directorate, provides as follows in its relevant paragraph:<\/p>\n \u201c…<\/p>\n (\u0131)\u00a0\u00a0To collect and analyse data on the causes of road traffic accidents and to takethe necessary technical measures to prevent their occurrence, or to have such measures taken [by others];<\/p>\n …\u201d<\/p>\n D.\u00a0\u00a0Road Traffic Regulations (no. 23053)<\/strong><\/p>\n 29.\u00a0\u00a0Article 16 of the Road Traffic Regulations sets out the municipalities\u2019duties and responsibilities, as relevant, in respect of the roads which they are responsible for constructing and maintaining:<\/p>\n \u201c(a)\u00a0\u00a0To maintain the state of the roads in a manner that ensures the order and safety of traffic;<\/p>\n (i)\u00a0\u00a0To implement the [necessary] measures,as recommended by the competent authorities, in areas where accidents occur due to the structure of the road or insufficient road traffic signs;<\/p>\n …\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/p>\n 30.\u00a0\u00a0The applicants complained, under Article 2 of the Convention, that the failure of the relevant State authorities to take the necessary protective measures in respect of the road in question, such as repairing the damaged roadside barrier, had aggravated the outcome of the accident and had resulted in the death of their wife and mother,Ye\u015fim\u00c7ak\u0131r. They stressed in this connection that sometime after the accident, the authorities had not only repaired the barrier, but had added another tier, in order to increase its capacity to protect against cars leaving the road.<\/p>\n 31.\u00a0\u00a0The applicants further claimed, under Articles 6 \u00a7 1 and 13 of the Convention, that the \u0130zmir Administrative Court, which was bound by law to collect all evidence relevant to the case of its own motion, had dismissed their requests for the obtaining of an expert opinion and the collection of other evidence to shed light on the circumstances of the accident. The applicants emphasised in this regard that the establishment of the facts of the current case had required technical expertise, which both the police officers who had prepared the road traffic accident report and the Administrative Court judges had lacked.<\/p>\n 32.\u00a0\u00a0The Court considers that the applicants\u2019 complaints fall to be examined under Article 2 of the Convention alone, the relevant part of which reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone\u2019s right to life shall be protected by law. ….\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 33.\u00a0\u00a0The Government claimed that the applicants\u2019 complaints under Article\u00a02 of the Convention were incompatible ratione personae with the provisions of the Convention, as the first applicant, who had alone been responsible for the accident that had claimed his wife\u2019s life, could not be considered to have victim status. They further argued that the applicants had failed to exhaust all available domestic remedies in relation to their complaints, as they had not applied to the Supreme Administrative Court for rectification of its decision dated 25 January 2011.<\/p>\n 34.\u00a0\u00a0In response to the Governments\u2019 argument that they lacked victim status, the applicants stated in the first place that unlike the first applicant, who had been charged with causing the death of Ye\u015fim\u00c7ak\u0131r by negligence, the second applicant had had no involvement in the accident.Therefore, her victim statusin connection with the death of her mother could not be challenged in any way. They added that, even if the first applicant had been found responsible for his wife\u2019s death in the criminal proceedings, that finding did not preclude the concurrent civil liability of the State authorities for the death. They emphasised in this connection the distinction between criminal and civil liability, and argued that the first applicant also retained victim status in respect of the death of his wife, considering their allegation that the authorities bore partial responsibility for her death.<\/p>\n 35.\u00a0\u00a0The Court considers that the Government\u2019s preliminary objection regarding the applicants\u2019 victim status is closely linked to the substance of the complaint under Article 2 and decides accordingly to join it to the merits.<\/p>\n 36.\u00a0\u00a0As for the Government\u2019s second preliminary objection concerning the non-exhaustion of domestic remedies, the Court notes that it has examined and rejected similar arguments in previous cases (see, for instance, Da\u011ftekin and Others v. Turkey, no. 70516\/01, \u00a722, 13\u00a0December2007, and the case cited therein). The Court finds no particular circumstances in the present application which would require it to depart from that conclusion. Consequently, it rejects the Government\u2019s preliminary objection in this respect.<\/p>\n 37.\u00a0\u00a0The Court notes that the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n 38.\u00a0\u00a0The applicants made the same allegations as those submitted to the Supreme Administrative Court in their appeal petition (see in paragraph\u00a024 above). They stressed in particular that the proceedings conducted before the \u0130zmir Administrative Court had not been of a nature to dispel all doubts as to whether any omission on the part of the authorities had contributed to the accident or its tragic outcome.<\/p>\n 39.\u00a0\u00a0The Government argued that the issues concerning the admissibility and assessment of evidence were primarily matters for regulation by the national courts, and that the Court should not act as a fourth-instance body when it reviews the decisions of national courts. They emphasised in this regard that the decision whether to request an expert opinion was within the domestic court\u2019s discretion. The \u0130zmir Administrative Court had found in the instant case that the first applicant bore sole responsibility for the accident, as he had lost control of his car while taking a sharp bend at an excessive speed, and that the responsibility of the Municipality could not be engaged in these circumstances. According to the Government, the Administrative Court had based its decision on all the evidence available in the case file, including the expert report submitted to the \u0130zmir Magistrates\u2019 Court that had found no structural problems in the road, and had not deemed it necessary to obtain an expert report in addition to that evidence. The Government argued that there had been no arbitrariness in that decision. They added that the Administrative Court was in any event bound by the finding of the criminal court regarding the first applicant\u2019s guilt. They lastly drew the Court\u2019s attention to what they deemed to be discrepancies between the statements delivered by the first applicant before different domestic authorities as to the circumstances of the accident.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 40.\u00a0\u00a0The Court reiterates that the first sentence of Article 2 \u00a7 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also stipulates its duty to take such reasonable measures to ensure the safety of individuals within its jurisdiction as are necessary (see, among many authorities, Ciecho\u0144ska v. Poland,no. 19776\/04, \u00a760, 14June 2011, and the cases cited therein). Having regard to the approach adopted in previous cases involving non-intentional infringements of the right to life, the Court notes that this duty requires States to adopt in this context regulations for the protection of people\u2019s safety in public spaces, and to ensure the effective functioning of that regulatory framework (ibid., \u00a7\u00a069).<\/p>\n 41.\u00a0\u00a0The aforementioned positive obligation to protect the right to life has been found to arise in a range of different contexts examined so far by the Court, including that of road safety (see ibid., \u00a7 62, for examples of different sectors where this obligation has been found to be engaged). However, there is no exhaustive list of sectors or activities where this obligation comes into play.As the Grand Chamber observed in its \u00d6nery\u0131ld\u0131z v. Turkey judgment ([GC], no. 48939\/99, \u00a7 71, ECHR 2004\u2011XII), the positive obligation under Article 2 must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake. In certain circumstances, positive obligations may even attach to a State to protect individuals from risk to their lives resulting from their own action or behaviour (see Bone v. France (dec.), no. 69869\/01, 1\u00a0March 2005, with further references).<\/p>\n 42.\u00a0\u00a0The Court further reiterates that in the event of serious injury or death, the above-mentioned duty under Article 2 requires the State to have in place an effective independent judicial system so as to secure the legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. This obligation does not necessarily require the provision of a criminal-law remedy in every case. Where negligence has been shown, for example, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts (see Ciecho\u0144ska, cited above, \u00a7 66).<\/p>\n 43.\u00a0\u00a0Theapplicants in the instant case did not contest the domestic courts\u2019 finding that the first applicant bore the primary responsibility for the occurrence of the accident. They nevertheless made two claims which may engage the respondent State\u2019s concurrent responsibility for the death under Article\u00a02 of the Convention. They firstly claimed that the result of the traffic accident in question had been significantly aggravated due to the defective state of the crash barrier, which had failed to stop the car falling down into the canal, and to possible structural problems with the road. They secondly argued that neither of those contentious matters had been duly examined by the \u0130zmir Administrative Court, which had not even ordered an expert report to assist with the determination of such technical matters.<\/p>\n 44.\u00a0\u00a0The Court notes in the first place that the applicants\u2019 allegations regarding the possible structural problems with the road were examined during the domestic proceedings by an expert, who appears not to have identified any significant problems which may have contributed to the accident (see paragraph 15 above). In these circumstances, and having regard to its considerations below, the Court finds no reason to explore this specific issue any further.<\/p>\n 45.\u00a0\u00a0As for the applicants\u2019 allegations regarding thestate of the crash barrier, the Court recalls that it is not its role to determine whether and what type of roadside safety measures must be taken on different types of roads in Contracting States, nor does it have the capacity to make such assessment. It naturally falls on the relevant authorities in individual States to identify the roads, junctions, bends or the like that may pose a particular risk to human life and to determine the appropriate measures that must be takento dissipate or minimise those risks.<\/p>\n 46.\u00a0\u00a0The Court notes that after assessing the potential dangers posed by the road and roadside conditions at the bend that is the subject matter of the present case, the relevant State authorities had decided that it wasnecessary to take some specific measures to protect the safety of road users against those dangers. Accordingly, they put in place a sign warning drivers of the sharp bend ahead (see paragraph 7 above), and also installed a crash barrier to preventout-of-control vehicles from dropping off the side of the road into the adjacent concrete canal. The Court also notes from the information in the case file, however, that thebarrier in question was already damaged at the time of the incident. The applicants alleged that that prior damage had virtually negated the purpose of the crash barrier, as a result of which it had failed to prevent their car from vaulting over it into the canal, thus bringing about the death of their wife and mother.<\/p>\n 47.\u00a0\u00a0The Court notes once again that it is not in a position to determine whether and what type of measures must be taken to ensure safety on a particular road. Nor can it speculate in the present circumstances as to whether the inadequacy of those measureshad led to the death of Ye\u015fim\u00a0\u00c7ak\u0131ras alleged by the applicants, or arrive at general conclusions about the adequacy of the relevant regulatory regime on road safetyin\u00a0abstracto, which, in any event, is not contested by the applicants (see, for instance, Dodov v. Bulgaria, no. 59548\/00, \u00a7 86, 17 January 2008, and Ciecho\u0144ska, cited above, \u00a7 70).<\/p>\n 48.\u00a0\u00a0It is, however, the Court\u2019s view that if the national authorities had deemed such safety measures necessary in the first place to prevent potential risks to life, as in the present case, any omissions in maintaining the effectiveness of those measures must be subjected to close scrutiny by the domestic courts, especially where it is claimed that such omissions have led to serious physical injury or loss of life. The Court reiterates in this connection that an issue of State responsibility under Article 2 of the Convention may arise in the event of the inability of the domestic legal system to secure accountability for any negligent acts endangering or resulting in the loss of human life (see Ciecho\u0144ska, cited above, \u00a7 71).The Court will therefore examine whether the legal system of the respondent State dealt adequately with the case at hand as required under Article 2 (see, mutatis mutandis,Dodov, cited above, \u00a7\u00a7 83 and 86, and Ciecho\u0144ska, cited above, \u00a7 70).<\/p>\n 49.\u00a0\u00a0Assessing the judgment of the \u0130zmir Administrative Assize Court dated 27 May 2010, the Court agrees with the applicants that that court appears to have failed to subject the applicants\u2019 allegations regarding the authorities\u2019responsibility for the death of Ye\u015fim\u00c7ak\u0131r to a sufficiently rigorous scrutiny.<\/p>\n 50.\u00a0\u00a0The Court notes that relying mainly on the traffic accident report prepared by the police after the incident, the Administrative Court found that the first applicant bore sole responsibility for the accident, as he had lost control of his car through his own fault and had caused it to dropfrom the road.However, bearing in mind that crash barriers are put in place for the very purpose of minimising the risk to life on roads where drivers have been observed to run a real risk of losing control of their cars, which risk was also acknowledged by the national authoritiesin respect of the road at issue, the Administrative Court\u2019s simplistic conclusion seems inadequate to address any potential responsibility on the part of the State authoritiesin the death of the applicants\u2019 wife and mother.<\/p>\n 51.\u00a0\u00a0The Court notes in this connection that the Administrative Court did not consider the perceived risksthat had prompted the relevant authorities to place a crash barrier at the bend in question.It did not examine whether the crash barrier had been damaged as a result of previous accidents there, as alleged by the first applicant; whether the barrier had been damaged to the point of losing its purpose and, if so, for how long the authorities had been aware of that damage;and whether their failure to repair the barrier in a timely manner had contravened their obligations arising from the relevant domestic legislation,engaging their responsibility, at least partially, for the death of Ye\u015fim\u00c7ak\u0131r.Nor did the court assess, ultimately, whether there was a causal link between the authorities\u2019omissions and the death, that is, whether the applicants\u2019 car had left the road as a result of the incapacity of the crash barrier to keep it on the road, or whether, having regard to factors such as the weight and speed of the vehicle, the barrier would have been unable to withstand the impact, even if it had been intact.<\/p>\n 52.\u00a0\u00a0In the Court\u2019s opinion, the \u0130zmir Administrative Court was under an obligation to address those issues, with the help of an expert opinion or not as it deemed necessary, in order to shed light on the circumstances of the case and to establish the authorities\u2019liability for the death, if any. The Administrative Court did not, however, duly fulfil that task, as it failedto extend its focus beyond the immediate responsibility of the first applicant for the occurrence of the accident.<\/p>\n 53.\u00a0\u00a0The Court notes in this regard the Government\u2019s argument that the \u0130zmir Administrative Court was bound by the finding of guilt of the \u0130zmir Assize Court in respect of the first applicant (see paragraph 39 above). The Court is well aware thatalthough under Turkish law, thecivil courts are not bound by the verdict of a criminal court as to the acquittal of a defendant (see, for instance, G\u00fcven\u00e7 v. Turkey (dec.), no. 43036\/08, \u00a7 42, 21\u00a0May 2013), a finding as to guilt is binding. The Government\u2019s argument, however, fails to take into consideration the fact that the possible civil responsibility on the part of the authorities for the accident was outside the scope of the \u0130zmir Assize Court\u2019s jurisdiction in the instant case. For that reason, the establishment of the responsibility of the first applicant by that criminal court did not preclude a finding by the Administrative Court that the authorities had also contributed to the death of Ye\u015fim \u00c7ak\u0131r by way of their acts or omissions.<\/p>\n 54.\u00a0\u00a0The Government also claimed in their observations that according to the Administrative Court, the Municipality\u2019s responsibility could not be engaged in the circumstances, as the first applicant had lost control of his car while taking the bend \u201cat an excessive speed\u201d, suggesting that the causal link between the authorities\u2019alleged omission and the death of Ye\u015fim \u00c7ak\u0131r had been broken for that reason. The Court wishes to stress that, contrary to the Government\u2019s claim, neither in the Administrative Court\u2019s judgment nor anywhere else in the administrative or criminal case files was any observation made regarding the speed of the first applicant\u2019s car by the judicial authorities or experts. There was similarly no information in the traffic accident report as to the approximate speed of the car at the time of the accident or whether the first applicant had been driving within the legal speed limit. It cannot therefore be assumed that the \u0130zmir Administrative Court had deemed the causal link between the alleged omission and the death to have been broken for that reason, as suggested by the Government.<\/p>\n 55.\u00a0\u00a0Having regard to the foregoing considerations, the Court considers that the administrative proceedings at issue did not secure an effective possibility to shed light on the circumstances of the death of the applicants\u2019 wife and mother and to establish whether the responsibility of the State authorities had been engaged in the circumstances. In other words, the judicial system of the respondent State, faced with an arguable case of negligent acts on the part of the State authorities endangering human life, failed to provide an adequate response, consonant with the State\u2019s procedural obligations under Article 2 (see Dodov, cited above, \u00a7\u00a7\u00a097 and\u00a098, and Ciecho\u0144ska, cited above, \u00a7\u00a7 78 and 79).<\/p>\n 56.\u00a0\u00a0The Court therefore dismisses the Government\u2019s preliminary objection as to the applicants\u2019 victim status and concludes that there has been a violation of Article 2 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 57.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n 58.\u00a0\u00a0The applicants claimed 10,000 euros (EUR) in respect of pecuniary damage, having regard to the financial contribution that their wife and mother,Ye\u015fim\u00c7ak\u0131r, would have made to the family had she not lost her life, and claimed EUR 40,000 in respect of non-pecuniary damage. They also claimed 1,254.43 Turkish liras (TRY) (approximately EUR 308) for their costs and expenses before the domestic courts and TRY\u00a0140 (approximately EUR 35) for translation costs, and submitted the relevant invoices in relation to those expenses. They lastly statedthat their representative had worked some sixteen hours on the case and requested lawyers\u2019 fees in an amount to be determined by the Court.<\/p>\n 59.\u00a0\u00a0The Government contested those claims, arguing that they were excessive and unsubstantiated, and that there was no causal link between the alleged violations of the Convention and the purported damage.<\/p>\n 60.\u00a0\u00a0The Court rejects the applicants\u2019 claims in respect of pecuniary damage as unsubstantiated. It considers, however, that the applicants have suffered some non-pecuniary damage on account of the deficiencies in the administrative proceedings conducted in the aftermath of the death of their wife and mother, which cannot be sufficiently compensated for by the finding of a violation alone. Taking into account the particular circumstances of the case and the type of violation found, the Court awards the applicants a total of EUR 10,000 in respect of non\u2011pecuniary damage.<\/p>\n 61.\u00a0\u00a0As for the costs and expenses, the Court notes that according to its case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants the sum of EUR\u00a02,000 covering costs under all heads.<\/p>\n 62.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Joins the Government\u2019s preliminary objection concerning the applicants\u2019 victim status to the merits of the complaint under Article 2 of the Convention and dismisses it;<\/p>\n 2.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 2 of the Convention under its procedural limb;<\/p>\n 4.\u00a0\u00a0Holds,<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;<\/p>\n 5.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 5 June 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stanley Naismith\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Robert Spano
\nPaul Lemmens,
\nLedi Bianku,
\nI\u015f\u0131l Karaka\u015f,
\nNeboj\u0161a Vu\u010dini\u0107,
\nValeriu Gri\u0163co,
\nJon Fridrik Kj\u00f8lbro, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n